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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to an award of
Arbitrator Jerome H. Ross filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Union filed an opposition to the
Agency's exceptions.

The Arbitrator issued an award of attorney fees in connection with his
previous awards finding that certain Agency employees were entitled to backpay
and liquidated damages because they were improperly excluded from coverage
under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et
seq. The Agency contends in its exceptions that the award is deficient
because the Arbitrator used an unreasonable hourly rate in computing attorney
fees. For the following reasons, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

In U.S. Department of the Treasury, Internal Revenue Service,
Washington, D.C. and National Treasury Employees Union, 46 FLRA 1063
(1992), the Authority denied the Agency's exceptions to the Arbitrator's award
sustaining a grievance filed by the Union on behalf of Revenue Officers paid at
rates higher than GS-10, Step 1 who had been declared exempt by the Agency from
coverage under the FLSA for purposes of overtime pay. The Arbitrator found that
the primary duties of Revenue Officers did not qualify those employees as bona
fide administrative employees exempt from FLSA coverage under section 213(a) of
the FLSA and regulations of the Office of Personnel Management (OPM). The
Arbitrator issued a supplemental award in which he ordered the Agency to pay
the affected employees backpay for lost overtime wages plus an equal amount as
liquidated damages.

Subsequently, the Union filed a petition for attorney fees with the
Arbitrator. The Agency contended before the Arbitrator that the Union's
petition for attorney fees was untimely filed with the Arbitrator. Further, the
Agency contended that if attorney fees were awarded, such fees must be computed
on a "cost-plus" basis rather than the market rate requested by the Union.
Award at 3. The Agency also contended that the Union failed to
substantiate the total amount of hours claimed and that the Union claimed an
excessive amount of reimbursement for photocopying expenses.

The Arbitrator ruled that the Union's petition for attorney fees was
timely filed. Turning to the merits of the petition for attorney fees, the
Arbitrator found that computation of attorney fees on a market rate rather than
cost-plus basis was in accordance with standards adopted by Federal courts and
the Authority and he ruled that he would apply market rates in this case.

The Agency argued before the Arbitrator that the amount requested by
the Union was unreasonable because of "the Union's use of the 'Laffey Matrix'
to establish the market rate for attorneys practicing in the District of
Columbia." Id.(*) The Arbitrator rejected that argument and held that "the
Agency [had] not submitted any evidence to rebut the Union's claim that use of
the Laffey Matrix and its updated versions [was] appropriate." Id.

The Agency also argued before the Arbitrator that the Union had charged
fees at a lower hourly rate in other cases than it was requesting in this case.
The Arbitrator rejected that argument and stated that "the Agency's reliance
upon affidavits submitted by the Union's Controller in connection with attorney
fee requests in prior cases, which reflect the fee schedule for attorneys used
by the Union, is not evidence which rebuts the Union's claim in this case."
Id. The Arbitrator stated, with regard to the appropriate fee rate, that
"based upon the evidence in this record, I find that the best evidence of the
market rate in the Washington, D.C. area is the Laffey Matrix." Id.

The Arbitrator made adjustments to the hours and rates claimed for
individual attorneys and the amount claimed for photocopying expenses. He
concluded that "[a]fter reviewing the remainder of the Union's Petition not
addressed hereinabove, I find that the number of claimed hours was reasonably
expended and the claimed hourly rates for those hours are reasonable."
Id. at 5.

III. Positions of the Parties

A. The Agency

The Agency excepts to that portion of the Arbitrator's award in which
he found that the Agency failed to produce evidence rebutting the Union's claim
that the Laffey Matrix should be used to determine appropriate hourly
rates in this case and to the Arbitrator's finding that the Laffey
Matrix best reflects the market rate for attorneys in the Washington, D.C.
area. The Agency contends that the Arbitrator failed to provide a fully
articulated, reasoned decision as required under Authority precedent and that
the award "provides for an unreasonably high hourly rate, [and] produces a
windfall to [the Union], therefore violating law, rule, or regulation."
Memorandum in Support of Exceptions at 1.

The Agency contends that the Arbitrator improperly relied on the
Laffey Matrix and disregarded Agency evidence showing that the Union
historically had claimed and received attorney fees at a lower hourly rate than
provided by the Laffey Matrix. The Agency notes that the Union had
claimed attorney fees at a lower rate in another case and maintained that that
rate represented the Union's historical rate. The Agency contends that the
Union's declaration as to fees in the other case, "rather than a matrix
unrelated to the administrative process, is the appropriate basis for
determining a legally reasonable market rate for [the Union's] services in this
arbitration." Id. at 4.

B. The Union

The Union contends that the Agency's exceptions fail to establish that
the award is deficient. The Union maintains that the evidence based on
affidavits by Union attorneys and the Laffey Matrix which it provided
was sufficient to show "'that the prevailing requested rates are in line with
those in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.'" Opposition at 1 (quoting United
States Department of Justice, Bureau of Prisons, Washington, D.C. and Bureau of
Prisons Federal Correctional Institution, Ray Brook, New York, 46 FLRA
1002, 1009 (1992) (Bureau of Prisons)).

The Union cites various cases in which Federal courts have approved the
use of the Laffey Matrix in determining prevailing market rates for
attorneys in the District of Columbia. SeeTrout v. Ball,
705 F. Supp. 705, 709 n.10 (D.D.C. 1989) (Trout); Fischbach
v. District of Columbia, No. 87-0646 (D.D.C. Jan. 3, 1993) (mem.)
(Fischbach); Robles v. United States, No. 84-3635 (D.D.C.
Jan. 10, 1992) (mem.) (Robles); Ellison v. United States,
No. 663-88C (Cl.Ct. Nov. 13, 1992) (order) (Ellison). The
Union also notes that the Equal Employment Opportunity Commission (EEOC)
approved use of the Laffey Matrix in determining attorney fees in
Hatfield v. Garrett, 90 FEOR 1046 (EEOC 1989). The Union
points out that the original Laffey Matrix was for the period
June 1, 1988, through May 31, 1989, and that the court in
Robles "approved updating the matrix in $5 and $10 annual
increments, depending on the experience level of the attorney." Opposition
at 2 n.2 (citing Robles at 16 nn.7 & 8). The
Union contends that the Arbitrator properly considered evidence relating to the
prevailing market rates for attorneys and made "a finding of fact, based upon
his analysis of the unrebutted record before him." Id. at 4. The
Union asserts that the Agency's exceptions merely disagree with the
Arbitrator's factual findings and provide no basis for finding the award
deficient.

IV. Analysis and Conclusions

Initially, we note that the Agency does not dispute that the grievants
in the underlying case were affected by an unjustified or unwarranted personnel
action, that the award of attorney fees was in conjunction with an award of
backpay, that the grievants were the prevailing parties, or that the award of
attorney fees satisfies the interest of justice standard set forth in
5 U.S.C. § 7701(g)(1). Accordingly, we conclude that those
requirements have been satisfied and we will not address them further.
SeeU.S. Department of Defense, Defense Mapping Agency,
Hydrographic/Topographic Center, Washington, D.C. and American Federation of
Government Employees, Local 3407, 47 FLRA 1187, 1192 (1993)
(Defense Mapping Agency).

The Agency asserts that the award is deficient because the amount of
fees awarded is not reasonable and is based on an improper standard for
determining the hourly rate of the Union's attorneys. We find that the
Arbitrator's award of attorney fees is not deficient and we will deny the
Agency's exceptions.

The Authority previously has described the requirements that are
necessary for determining the reasonableness of attorney fee awards under the
Back Pay Act, 5 U.S.C. § 5596. See, forexample, Department of the Air Force Headquarters, 832D Combat
Support Group DPCE, Luke Air Force Base, Arizona, 32 FLRA 1084, 1099-1101
(1988) (Luke AFB) (quoting Hensley v. Eckerhart, 461 U.S. 424,
433 (Hensley)). Generally speaking, fee requests must be closely
examined to ensure that the number of hours expended were reasonable.
SeeU.S. Customs Service, 46 FLRA 1080, 1092 (1992)
(Customs). The hours expended multiplied by the rate establish "'an
objective basis on which to make an initial estimate of the value of a lawyer's
services.'" Luke AFB, 32 FLRA at 1100 (quoting Hensley,
461 U.S. at 433).

Further, in determining the market rate, the Authority has held that
"where an applicant for a fee award has a prior billing history, the reasonable
hourly rate will be counsel's established billing rate." Id. at 1109.
"'[T]he rates charged in private representations may afford relevant
comparisons' in determining the market rate." Bureau of Prisons,
46 FLRA at 1008 (quoting Blum v. Stenson, 465 U.S. 886, 895-96
n.11 (1984) (Blum)). However, where the attorneys involved are also
employees of a nonprofit organization, such as a union, which does not have a
customary billing rate, it is necessary to consider evidence as to whether the
rate requested is in line with the prevailing billing rate "'in
the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation.'" Id. at 1009 (quoting
Blum, 465 U.S. at 895-96 n.11). SeealsoCustoms,
46 FLRA at 1096 ("in assessing the appropriate market-rate, it is no
longer necessary to rely on an attorney's customary billing rate that is lower
than the prevailing market-rate").

In this case, the Arbitrator properly found that the Union's attorneys
were entitled to reimbursement at the prevailing market rate rather than on a
cost-plus basis. SeeBureau of Prisons, 46 FLRA
at 1007. The Arbitrator reviewed the number of hours expended by the
Union's attorneys and, with certain exceptions explained in his award,
determined that the number of hours expended was reasonable. The Arbitrator
then reviewed the information provided in the Union's petition for attorney
fees and found that the Laffey Matrix constituted the best evidence of
the market rate for attorneys in the Washington, D.C. area. We find nothing in
the Arbitrator's findings in this regard that is contrary to any law, rule, or
regulation. Contrary to the Agency's contentions, we find that the Arbitrator
provided a fully articulated, reasoned decision concerning the reasonableness
of the amount of attorney fees awarded. Further, we note that the Arbitrator
considered and rejected the Agency's argument that the attorney fee rate
requested by the Union in another case should be used in this case instead of
the Laffey Matrix. The Agency's exceptions in this regard constitute
mere disagreement with the Arbitrator's findings and evaluation of the evidence
and provide no basis for finding the award deficient. SeeDefense
Mapping Agency, 47 FLRA at 1194.

Although the Agency disagrees with the Arbitrator's findings in this
regard, the Agency has failed to provide any information that demonstrates that
the hourly rates set forth in the Laffey Matrix submitted by the Union
do not reflect hourly rates that are consistent with those in the community for
similar services of lawyers of comparable skill. We note that the Laffey
Matrix has been approved and used by Federal courts and the EEOC in cases that
are similar to this case. SeeTrout; Fischbach;
Robles; and Ellison. In particular, in Trout, the United
States District Court for the District of Columbia stated:

The attorney fee matrix approved in [Laffey] was embraced by
the Court of Appeals for this Circuit in Save Our Cumberland Mountains v.
Hodel, 857 F.2d 1516 (D.C. Cir. 1988) (en banc), and updated in
connection with that case. Although the updated matrix was never expressly
approved by the court because the parties settled the issue of fees, it does
provide an accurate and updated schedule of attorney fees in this
District.

705 F. Supp. at 709 n.10. In accordance with Trout,
Fischbach, Robles, and Ellison, we find that the Agency
has failed to establish that the Arbitrator's use of the Laffey Matrix
in determining the prevailing market rate in the District of Columbia for
attorney fees in cases under the Back Pay Act is contrary to law, rule, or
regulation.

In summary, we find that the Arbitrator issued a fully articulated and
reasoned attorney fee award that supported his conclusion as to the amount of
attorney fees to which the Union was entitled, including specific findings
demonstrating how the hourly rate and number of hours expended were determined.
Although the Agency disagrees with the Arbitrator, the Agency has failed to
demonstrate that the hourly rates applied by the Arbitrator are not consistent
with those in the community for similar services of lawyers of comparable
skill. Rather, the Agency is merely disagreeing with the Arbitrator's findings
of fact and evaluation of the evidence as to the prevailing market rates for
attorneys. Such disagreement provides no basis for finding the award deficient.
SeeDefense Mapping Agency, 47 FLRA at 1194. Therefore,
we find that there is no basis on which to conclude that the Arbitrator's award
of attorney fees based on the prevailing market rate set forth in the updated
Laffey Matrix submitted by the Union is deficient. Accordingly, we will
deny the Agency's exceptions.